State v. McFarland

• Decision Date: 20 July 1995
• Docket Number: Nos. 61690-6,62059-8,s. 61690-6
• Citation: 127 Wn.2d 322,899 P.2d 1251
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. James McFARLAND, Petitioner. STATE of Washington, Petitioner, v. Michael Joseph FISHER, Respondent.

Page 322

127 Wn.2d 322

899 P.2d 1251

STATE of Washington, Respondent, v.James McFARLAND, Petitioner.

STATE of Washington, Petitioner, v.Michael Joseph FISHER, Respondent.

Nos. 61690-6, 62059-8.

Supreme Court of Washington En Banc.

July 20, 1995.

Reconsideration Denied Sept. 8, 1995.

As Amended Sept. 13, 1995.

Washington Appellate Defender Ass'n, Jessica Ryan and Rita J. Griffith, Seattle, for respondentMichael Joseph Fisher.

Joe Quaintance, Tacoma, for petitionerJames McFarland and James McFarland, Monroe, pro se.

Norm Maleng, King County Prosecutor, Lee Yates, DeputyCounty Prosecutor, Seattle, and John Ladenburg, and Pierce County ProsecutorThomas C. Roberts, DeputyCounty Prosecutor, Tacoma, for respondent State.

Richard Cowan, Seattle, amicus curiae for Washington Defender Ass'n.

JOHNSON, Justice.

We accepted and consolidated these cases to consider whether a defendant should be allowed to challenge a warrantless arrest for the first time on appeal where the defendant alleges failure to challenge the arrest at trial constitutes ineffective assistance of counsel.

James McFarland appeals his convictions for first degree burglary, first degree kidnapping, first degree attempted robbery, and as a felon in possession of a short firearm.Michael Fisher appeals his convictions for delivery of a controlled substance and possession with intent to deliver a controlled substance, both with school zone enhancements.Each Defendant challenges the legality of his arrest and argues the trial court should have suppressed evidence seized following the arrest.McFarland also asserts certain inculpatory statements should have been suppressed.Each Defendant raises his challenge for the first time on appeal, and each challenge is raised together with a claim of ineffective assistance of counsel for failure to move for suppression at trial.

FACTS

State v. McFarland

At about 10:30 p.m., April 23, 1990, Alan Rogers heard his dogs barking, indicating to him that someone was at his door.When he opened the door, he saw two masked men holding sawed-off shotguns.One of the masked men was of average size, while the other was somewhat larger.The men forced their way in, ordered Rogers to lie on the floor, and brought the other two family members into the living room.Alan Roger's wife, Suzanne, was forced to lie on the floor at the feet of her mother, Doris Logan.

The men demanded money of Alan Rogers.When Rogers told them he had none, the smaller man kicked and hit him several times, finally taking him to the bedroom where the man again demanded money.Rogers testified he was told he had 4 seconds to cooperate or the man would kill him; the man then began a 4-second countdown.

Rogers kept a bucket beside the bed, containing change, personal belongings, and a .22 caliber Derringer-type pistol.He picked up the bucket and told the man it contained money.Rogers then got the pistol, grabbed the man's shotgun, spun around behind him, and shot him repeatedly with the Derringer until the man ceased struggling and fell on the bed.The man died at the scene and was later identified as Patrick Flick.

Believing the shots had killed her husband, Suzanne jumped up and ran out of the house, screaming for help.Rogers went into the hallway intending to shoot the larger masked man but, finding his Derringer empty, retreated.The man fled, firing the shotgun as he left the house.He climbed over a neighbor's fence and ran down an alley, still carrying the sawed-off shotgun when witnesses lost sight of him.At no time did any victim or witness see the man's face.

The first 911 emergency call from Rogers was received at 10:42 p.m. on April 23, 1990, saying shots had been fired, and the first police officer arrived at 10:45 p.m. Witnesses described the larger masked man as 5' 11"' to 6' 2"' tall and 180 to 220 pounds, and wearing dark clothing.Rogers testified the man had a moustache visible through his ski mask and sounded like an older person, probably in his late 40's.

The next day police put James McFarland's house under surveillance.When he left the house and drove away in his car, McFarland was stopped and arrested.The police had no arrest warrant, but they believed McFarland to be the larger masked man involved in the attempted robbery at the Rogers' residence.At the time of the arrest, the police investigation had developed the following information linking McFarland with the crime: (1)he was 50 years old, 6' 0"' tall, and weighed about 220 pounds, which was consistent with the witnesses' descriptions; (2) a police dog tracked the scent of the larger masked man to the end of the alley where he appeared to have gotten into a car that leaked motor oil, and McFarland drove a car that leaked oil; and (3) McFarland had been seen with Flick shortly before the attempted robbery.

McFarland was read his rights and questioned following his arrest.Responding to questioning, he stated Flick had borrowed his car the previous evening while McFarland was attending a class at Bates Vocational School.Flick returned with the car around 9:40 p.m., and they went to Flick's parents' residence, drank a few beers, and examined two shotguns produced by Flick.Flick then injected himself with heroin and made a telephone call.There was no evidence at trial suggesting McFarland injected or ingested any heroin.The two men returned to the car, Flick carrying the two shotguns into the car with him.McFarland said he did not ask Flick what he intended to do with the weapons.McFarland and Flick then drove to the parking lot of the 38th Street Pub Tavern, where they met an unidentified, heavyset white man with whom Flick left, taking the shotguns with him.McFarland then went home, arriving there sometime between 10:30 p.m. and 11:30 p.m.¹

After McFarland's arrest and questioning, the police investigation developed additional information linking him to the crime: (1) McFarland's blood type and blood enzyme analysis matched a blood spot on a stocking mask recovered near the crime scene, a match shared by .4 percent of Caucasians and .2 percent of African-Americans; and (2)a court-ordered examination of McFarland by Dr. Harold Boyd revealed a head wound consistent with the location of the blood spot on the stocking mask and old enough that McFarland likely had the wound on the night of the assaults on the Rogerses.

Trial counsel moved to suppress certain evidence and challenged the State's efforts to obtain certain physical evidence, but counsel did not challenge the warrantless arrest or move to suppress any evidence based on an illegal arrest.McFarland was convicted of the charged crimes.On appeal McFarland's new counsel alleged prosecutorial misconduct, double jeopardy, and insufficient evidence, but he did not challenge the legality of McFarland's arrest.McFarland filed a pro se brief in which he claimed ineffective assistance of trial counsel and challenged the legality of his arrest.McFarland's pro se brief to the Court of Appeals was the first time his warrantless arrest was challenged.

The Court of Appeals, Division Two, affirmed McFarland's conviction. State v. McFarland, 73 Wash.App. 57, 867 P.2d 660(1994).The court held his failure to object to the warrantless arrest at trial waived his Fourth Amendment right to challenge the admission of evidence and inculpatory statements made following his arrest.The court held this waiver was per se deficient conduct by counsel because it was neither a tactical decision nor sensible trial strategy.The court concluded, however, that it could not determine whether McFarland was prejudiced by this waiver, because it could not determine from the record whether the trial court would have granted a motion to suppress the evidence and statements obtained after McFarland's arrest.Because this determination involved matters outside the record, the Court of Appeals denied relief and held McFarland could only challenge his warrantless arrest and the evidence obtained following that arrest in a separate personal restraint petition under RAP 16.3.

State v. Fisher

On March 14, 1991, Seattle Police Officer Michael Alphin and his partner, Officer Wright, were working undercover, posing as buyers of illegal narcotics.Three other officers comprised the arrest team, which was in radio contact with Alphin and Wright.While driving around the Columbia City area of Seattle, Alphin came in contact with Larry Williams, who, in response to Alphin's offer to buy drugs, led Alphin and Wright to a corner where Alonzo King was standing.King, in turn, led Alphin and Williams to an apartment where they could each buy $20 worth of cocaine.

Officer Alphin testified the door to the apartment was wide open.He entered the apartment and saw two persons lying on a couch which faced the door.The two persons were later identified as Michael Fisher and Stonya Connor.Fisher and Connor sat up and leaned forward when Alphin, Williams, and King entered.Following some incidental conversation, Fisher told Connor to go ahead and sell to them.Connor opened her hand to reveal two small rocks, appearing to Alphin to be rock cocaine.Alphin took one of the rocks, inspected it, and gave Connor a marked $20 bill.Williams looked at the other rock, but declined to buy it because it was too small.

As Alphin turned to leave, he asked Fisher if he could come back later to make another purchase.Fisher responded yes, there would be more drugs later.On cross examination, Alphin admitted this final exchange was not included in his first report but in a second report, prepared only after communication with the prosecuting attorney.

Officer Alphin returned to his vehicle and told Officer Wright he had made a "good buy".Wright radioed the arrest team to move in for the arrest.Alphin and Wright then left the area.

The arrest team was comprised of officers Bruce, Christophersen, and Waltz.Christophersen testified that,...